Friday, August 19, 2016

Second-degree Burglary, Mutilated Bras and Emails

This post examines a recent opinion from the Court of Appeals of Minnesota:State v. Deitering, 2016 WL 4262976
(2016).The court begins the opinion by
explaining that

Douglas Deitering faced a second-degree burglary charge for entering his former paramour's house and stealing or
mutilating her bras, blouses, and panties. Deitering claimed during his bench
trial that the damaged clothes found in his house were part of a planned erotic
photoshoot that he and the victim had contemplated and that he never entered
her home without permission. The district court deemed Deitering's assertions
incredible and found him guilty.

Deitering argues on appeal that the
district court erred by excluding evidence of a sex tape featuring him and the
victim, an email exchange between the two, and photographs of the victim in her
underwear. He also argues that his trial counsel was ineffective for not
requesting a separate hearing on the state's motions in limine regarding that
evidence.

(a) Whoever enters a building without
consent and with intent to commit a crime, or enters a building without consent
and commits a crime while in the building, either directly or as an accomplice,
commits burglary in the second degree and may be sentenced to imprisonment for
not more than ten years or to payment of a fine of not more than $20,000, or
both, if:

(1) the building is a dwelling;

(2) the portion of the building entered
contains a banking business or other business of receiving securities or other
valuable papers for deposit or safekeeping and the entry is with force or
threat of force;

(3) the portion of the building entered
contains a pharmacy or other lawful business or practice in which controlled
substances are routinely held or stored, and the entry is forcible; or

(4) when entering or while in the
building, the burglar possesses a tool to gain access to money or property.

(b) Whoever enters a government
building, religious establishment, historic property, or school building
without consent and with intent to commit a crime under section 609.52 or
609.595, or enters a government building, religious establishment, historic
property, or school building without consent and commits a crime under section
609.52 or 609.595 while in the building, either directly or as an
accomplice, commits burglary in the second degree and may be sentenced to
imprisonment for not more than ten years or to payment of a fine of not more
than $20,000, or both.

The Court of Appeals’ opinion went on to explain that the

state charged Douglas Deitering with
second-degree burglary after H.H. reported that he entered her Minnetonka house
without permission, stole clothing from inside, and cut holes in clothing that
he stole and in other clothing that he left behind.

State v. Deitering,
supra.

The court went on to explain that,

[a]ccording to the state's trial
evidence, Deitering and H.H. were separately married, next-door neighbors who
began a lengthy sexual affair around 2006. H.H. decided to end the sexual
nature of the relationship sometime before July 2013, but the two continued to
maintain a friendship, communicating socially in person and by email. Deitering
repeatedly attempted to rekindle the sexual relationship, but H.H. began seeing
another man, J.Y. Deitering learned about J.Y. when he saw J.Y.'s phone number
on H.H.'s telephone, and he confronted H.H., who told him that J.Y. was just a
business caller.

The state also presented evidence that
on July 31, 2013, H.H. severed her relationship with Deitering entirely.
Deitering had moved to Eden Prairie, and H.H. met Deitering at his new home and
told him that she wanted him out of her life. Three days later, in the early
morning of August 3, H.H. was in bed at J.Y.'s home when she and J.Y. were
awakened by noises outside. It was Deitering. He pounded on the door and yelled
at J.Y. to send H.H. outside. J.Y. dialed 9–1–1 and asked for help. Police
arrived to discover that Deitering had slashed the tires on H.H.'s car and
scraped a message into the driver's side, `I cheat on my husband.’ Police found
Deitering nearby and arrested him. Police also searched his car, finding
utility knives, a black ski mask, binoculars, and two cut pieces of tan, nylon
fabric.

H.H. returned to her own home later
that day and discovered that someone had been inside. She found that most
of her bras and panties were missing, and so were several of her dresses. A few
remaining bras and blouses had been cut, leaving holes in the breast area. H.H.
called police and reported the intrusion and vandalism, suspecting Deitering.
There were no signs of forced entry, and Deitering knew the access code to
H.H.'s garage. Police executed a search warrant at Deitering's house and
discovered many articles of H.H.'s clothing inside his gun safe—dresses, bras,
and panties. Some of the clothing had been haphazardly cut to leave exposing
holes in the breast and crotch areas. Police found pieces of fabric corresponding
to the excised garments that police had recovered from H.H.'s home.

State v. Deitering,
supra.

The court also noted that Deitering

testified to counter the state's
incriminating account. He told the court that his sexual relationship with H.H.
had lasted until August 2, 2013. He claimed that several times during their
affair H.H. had posed for him wearing lingerie. He said that on July 31 she met
him at his home so he could photograph her. According to Deitering, H.H.
brought bags of lingerie with her and spent the morning cutting sexually
revealing holes in the clothing and modeling them while he took pictures.
Deitering asserted that they had sex and that H.H. left at about noon for a
meeting. In her haste, he said, H.H. mistakenly took a bag of her cut-up
clothing with her. Deitering then put the remaining clothes in his gun safe so
that his children would not find them. Deitering admitted to vandalizing H.H.'s
car, but he denied entering her home and stealing or mutilating her clothes.

The district court considered the
competing stories and rejected Deitering's. It found him guilty of
second-degree burglary and denied his motion for a new trial.

The Court of Appeals began the substantive part of its
opinion by explaining that Deitering

argues that the district court erred by
excluding evidence supporting his version of the events, depriving him of his
rights to present a complete defense, to confront witnesses against him, and to
a fair trial. Evidentiary rulings fall within the discretion of the district
court. State v. Amos, 658 N.W.2d 201,
203 (Minnesota Supreme Court 2003). An appellant challenging an evidentiary
ruling bears the burden of showing that the district court abused its
discretion and that its ruling unfairly prejudiced his defense. Id.

When a district court incorrectly
excludes evidence in violation of the defendant's constitutional rights, the
verdict must be reversed if `there is a reasonable possibility that the verdict
might have been different if the evidence had been admitted.’ State v. Graham, 764 N.W.2d 340, 358
(Minnesota Supreme Court 2009) (quotation omitted). We apply this standard to
the evidence that Deitering tried unsuccessfully to admit, which was a video
recording of him and H.H. having sex, photographs of H.H. wearing lingerie, and
email correspondence between them.

State v. Deitering,
supra.

The opinion goes on to explain that

Deitering tried to enter into evidence
a video recording that he says was filmed in April 2013 and features him and
H.H. having sex. The district court declared the video irrelevant and unduly
prejudicial, suspecting that it was being offered only to shame H.H.

We reject as meritless Deitering's
argument that the video was relevant to show that his sexual relationship with
H.H. lasted until the time of the burglary. Evidence must be relevant to be
admissible. Minnesota Rules of Evidence 402. Evidence is relevant if it has `any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.’ Deitering tried to enter into evidence a video recording
that he says was filmed in April 2013 and features him and H.H. having sex. The
district court declared the video irrelevant and unduly prejudicial, suspecting
that it was being offered only to shame H.H.

We reject as meritless Deitering's
argument that the video was relevant to show that his sexual relationship with
H.H. lasted until the time of the burglary. Evidence must be relevant to be
admissible. Minnesota Rules of Evidence 402. Evidence is relevant if it
has `any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be
without the evidence.’Minnesota Rules
of Evidence 401. Even relevant evidence may be excluded if it is merely cumulative.
Minnesota Rules of Evidence 403. Both parties agreed that Deitering and H.H.
were previously engaged in a sexual relationship, so the video is either
irrelevant or unnecessarily cumulative on that fact. And it is similarly
irrelevant or unnecessarily cumulative as to when the sexual relationship
ended, because the district court found that the relationship ended at least by
July 2013, which is three months after Deitering claims the video was recorded.
The recording adds nothing to the fact that the district court already
found—that Deitering and H.H. had a sexual relationship that ended before the
burglary.

State v. Deitering,
supra.

The Court of Appeals then took up the issue of emails
between H.H. and Deitering, explaining that the

district court ruled that certain
emails were hearsay and irrelevant. Deitering and H.H. exchanged the emails
between January and March 2013, discussing marital issues, health problems, and
their relationship. Deitering argues that admitting the emails would have
allowed him to impeach H.H.'s testimony as to when their relationship ended.
H.H. testified that her affair with Deitering ended about a year and a half
before the August 2013 burglary, but then she conceded that they might have had
sex after that.

A prior inconsistent statement that was
not delivered under oath may be admitted for the purpose of impeachment. State v. Thames, 599 N.W.2d 122, 125
(Minnesota Supreme Court 1999); Minnesota Rule of Evidence 613. We have reviewed the emails and do not find
anything in them clearly inconsistent with H.H.'s trial testimony or with the
district court's findings. The email exchange, like the sex tape, occurred
during a time that the district court found the relationship to be still ongoing.
The emails were therefore irrelevant or needlessly cumulative.

State v. Deitering,
supra.

The Court of Appeals then took up another argument Deitering
made in his appeal, which focused on the fact that the

district court refused to admit a
series of undated photographs showing H.H. wearing bras and panties, rejecting
Deitering's contention that the photographs supported the allegedly planned
clothing-cut-out photoshoot. See
Minnesota Rule of Evidence 404(b). The district court found the
photographs irrelevant and unduly prejudicial. We are not persuaded to reverse
by Deitering's argument that the photographs depict the `exact situation’ of
his proffered defense that he and H.H. were planning a `sexy’ photoshoot
involving garments with the breast and crotch areas excised. The proffered
photographs do not include underwear with cutouts. They do not make his
argument any stronger, and they certainly do not depict the `exact situation’
as the supposedly planned photoshoot that he described. The district court did
not abuse its discretion by excluding the photos.

State v. Deitering,
supra.

Finally, the Court of Appeals took up Deitering’s final
argument, i.e., that

his trial counsel gave him ineffective
assistance by failing to request a hearing on the state's motions in limine to
exclude the same evidence that we have just held to be either irrelevant or
needlessly cumulative. To succeed on this argument, Deitering must show both
that his trial counsel provided objectively deficient representation and that
but for the deficiency the evidentiary decision and the trial would have come
out differently. See Gates v. State, 398 N.W.2d 558, 561 (Minnesota Court of Appeals 1987).

Deitering does not explain how a full hearing
would have resulted in a different evidentiary decision or how admitting the
evidence would have prompted a different verdict. Because the underlying
evidence is at best cumulative and would, at most, merely corroborate the
fact-findings the district court already made, the second element of the
constitutional argument fails. So even assuming Deitering could establish
that any minimally competent attorney would have sought and secured a hearing
on the motions, he cannot prevail on his ineffective-assistance-of-counsel
claim.